Unpaid leave and sabbaticals

The Cabinet Office has published a useful Procurement Policy Note (“PPN”) on relief available to suppliers due to Covid-19 (available here). In brief, you should not be penalised by a public sector body, if, in the current circumstances, you are unable to comply (fully or partly) with your contractual obligations. Public sector bodies are expected to work with suppliers and, if appropriate, provide relief against current contractual terms. This is in order to maintain business and service continuity and avoid claims being accepted for other forms of contractual relief, such as the occurrence of a force majeure event.

The types of relief that may be available to suppliers to the public sector will depend on the existing contracts in place. Some contracts may have a payments by result mechanism, whereas others may be based on certain key performance indicators (KPIs) being met. Other contracts may not include any such mechanisms and therefore it will be a matter for discussion between suppliers and the public sector body.

The PPN provides that, rather than a supplier seeking to invoke a clause that would permit the supplier to suspend performance of its obligations (such as a force majeure clause), public sector bodies should first work with the supplier to amend or vary the contract. Any changes should be limited to the particular circumstances and considered on a case-by-case basis. Changes could include:

• Amending the contract requirements
• Varying timings of deliveries
• Relaxing KPIs or service levels
• Extending time for performance (e.g. revising a contract delivery plan), and/or
• Preventing the public sector from exercising any rights or remedies against the supplier for non-performance (e.g. liquidated damages or termination rights).

These should only be temporary variations and the contract should return to the original terms once the impact of the Covid-19 outbreak on the contract has ended. Discussions with the public sector body about any changes that are agreed should be documented, in a variation signed by both parties.

A public sector may also need to take account of regulation 72 of the Public Contract Regulations 2015, to ensure that any changes to a contract (even of a temporary nature) do not trigger a requirement to conduct a new tender process. Whilst this may be unlikely to be the case with temporary variations, suppliers should still bear this in mind when discussing any changes to a contract with a public sector body.

If you are a supplier to a public sector body and you are currently struggling to meet your contractual obligations, we recommend that you take legal advice as to whether it might be possible to take advantage of the flexible approach that the PPN requires public sector bodies to adopt – it could be that you can avoid service credits or other financial deductions, or the need to serve formal notices such as “force majeure” or other relief notices.

All employers in the UK are eligible to participate in the scheme. The purpose of the scheme is to allow employers to claim back employment costs if they have furloughed employees arising from the coronavirus crisis. Importantly this means the scheme is not limited to cases where the employee would otherwise have been made redundant.

Key points:

• Between 1 November 2020 – 30 June 2021, the government will reimburse employers for 80% of wage costs, up to a cap of £2,500 per month, with employers expected to contribute 10% of that 80% in July 2021 and 20% of that 80% in August and September 2021. Employers will still need to pay employer NICs and employer pension contributions (these cannot be claimed for).
• The scheme now also allows employees to return to work part time being on furlough for the remainder. See flexible furlough above for more information.
• The employer can agree to pay the employee more than it will be reimbursed but it cannot reclaim the additional amount or any other costs associated with the additional amount.
• The workers covered by the scheme are those who have been “furloughed” which is a leave of absence.
• Workers must be told about and agree to this change of status (see below).
• Employers have to continue to pay the furloughed workers and the Government will reimburse the employer.
• HMRC is administering the scheme and it has been extended until the end of September 2021
• Those who left employment and are re-employed and subsequently furloughed by agreement are eligible (please see the FAQ regarding redundancy and furlough above).
• Payments may be withheld if claims are based on inaccurate or dishonest information, or are found to be fraudulent. HMRC has put in place an online hotline for employees and the general public to report suspected fraudulent claims.
• The Government has made alternative help available for employers to continue to pay employees while the scheme is set up.

1. Keep in touch. If contact is poor, workers can feel disconnected, isolated or abandoned. This can adversely affect stress levels and mental health – especially in the current crisis when everyone is feeling more anxious.
2. Think about the use of laptops/devices (DSE) at home. Provide a basic form of risk assessment for self-completion.
3. Remind workers of simple steps to reduce the risks from display screen work:
   • take regular breaks (at least 5 minutes every hour) or change activity
   • avoid awkward, static postures by regularly changing position
   • get up and move or do stretching exercises
   • avoid eye fatigue by changing focus or blinking from time to time

Yes.

Workers (and agency workers) who are aware of the requirement to self-isolate and are due to work during their isolation period at a place other than their designated place (see below) must, as soon as reasonably practicable and in any event before they are next due to start work within the isolation period, tell their employer that they are self-isolating, and set out the start and end dates of their isolation period.

Clear communication to all workers about their obligation to do this is strongly recommended.

As we all adjust and adapt in line with the Government’s guidance throughout this uncertain time, we must consider how we can revise current processes and implement new ones to maintain effective and compliant ways of working. We have identified several key issues that all housing providers should consider.

Protocol Compliance

Housing providers will continue to receive new disrepair claims. Throughout the disruption caused by coronavirus, landlords will still be expected to respond to these claims and comply with the Pre-Action Protocol for Housing Conditions Claims whilst doing so. We address the issue of disclosure in particular below.

Letters of claim will continue to be sent by post to your Registered Office, and the deadlines will run from the date of deemed service. Ensure you have systems to enable you to scan correspondence and forward it to the responsible officer who will handle the claim so deadlines are met.

Under the Protocol, the deadline for disclosure is 20 working days from deemed service of a letter of claim (2 working days after it is sent). So, for example, a letter dated 2 March 2020 would be deemed served on 4 March 2020 and disclosure would therefore be due by 1 April 2020. All housing providers must continue to comply with the Protocol and so landlords should begin preparing now.

Failure to meet deadlines often result in the issuing of further applications to court by tenant’s solicitors which in turn will lead to unnecessary costs orders against landlords.

Therefore, all records, particularly relating to customer contact and repair logs, should be held electronically. If required, this will allow for such documentation to be redacted for GDPR purposes remotely and disclosed to the tenant’s solicitor simply and efficiently.

Remember it is possible to request an extension to all Protocol deadlines and it is inevitable in these unusual times, this will need to be utilised, and should not be refused. Request extensions to deadlines at the earliest opportunity to enable an achievable timescale. It would be a difficult lawyer that would not agree to such a request.